Few people doubt that state child-protective services agencies provide a valuable service by responding to allegations of child abuse.. Although the FMLA does not directly provide for ch
Trang 1Intervention can mean many different kinds
of actions Frequently, when the risk of further abuse is immediate and significant, child-protective services agents will place the child temporarily in a foster home Alternatively, agents may monitor the family or may provide counseling in order to curb the threat of abuse If a family does not cooperate with the intervention efforts of child-protective services, the agency may take the case before a judge, who may determine that abuse or neglect has occurred The judge may issue a court order mandating the agency’s intervention In ex-treme cases, agents may remove the child from the home permanently; following a judicial termination of parental rights, the child is then placed forADOPTION
Another function of state child-protective services is record keeping, which is accom-plished through a system known as the central registry The central registry contains informa-tion about child abuse reports—both substanti-ated and unsubstantisubstanti-ated—such as the names of the child and of the suspected abuser and the
final determination made by the child-protec-tive services worker This system helps agents in investigating current reports of abuse because it allows them to compare any previous accusa-tions, particularly within the same family The registry also supplies statistics about child abuse, which help the agency and the state legislature
to enact appropriate laws and policies and to provide adequate funding for child-protective services In some states, other parties may have access to the registry For example, a day-care center may check the registry before hiring employees, or an adoption agency may check the registry before placing an infant with a family
Few people doubt that state child-protective services agencies provide a valuable service by responding to allegations of child abuse But such agencies also have their critics Many people who have been accused of child abuse, particularly parents, object to the way in which these agencies routinely remove children from their homes when child abuse is suspected Children are traumatized by being taken from their parents, and allegations of abuse are frequently unfounded, these critics claim Contentious CHILD CUSTODY battles sometimes prompt false accusations of physical or sexual abuse, costing accused individuals both time and money in the fight to reclaim their children and their reputations Others object to the names of the accused being included on the central registry even when the accusations are unsubstantiated The backlash against child-protective services spurred the establishment, in
1984, of the information and support group Victims of Child Abuse Laws (VOCAL) VOCAL claims to have thousands of members nation-wide, and its members lobby for new laws that protect not only children but also parents who are falsely accused of being abusive or negligent Despite increased legislation and penalties for child abuse, extreme cases continue to appear and to fuel debates over child abuse laws Such cases include the Schoo case in suburban Chicago, which received widespread media coverage In December 1992 David Schoo, a 45-year-old electrical engineer, and his 35-year-old wife, Sharon Schoo, a home-maker, flew to Acapulco, Mexico, for a Christmas vacation, leaving their daughters, nine-year-old Nicole Schoo and four-year-old
SOURCE: U.S Department of Health and Human Services, Administration for
Children and Families, Child Maltreatment 2007.
Child Abuse and Neglect Cases in 2007
Total number of cases: 740,517
Neglect 59.0%
(436,944 cases)
Physical abuse 10.8%
(79,866 cases)
Sexual abuse 7.6%
(56,460 cases)
Psychological abuse
4.2%
(31,366 cases)
Multiple maltreatments 13.1%
(97,123 cases)
Other 5.1%
(37,966 cases)
Unknown or missing 0.1%
(792 cases)
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
358 CHILD ABUSE
Trang 2Diana Schoo, home alone The Schoos provided
their daughters only with cereal and frozen
dinners to eat and a note telling them when to
go to bed One day during their parents’
absence, the girls left the house when a smoke
alarm sounded As they stood barefoot in the
snow, a neighbor found them, learned of their
situation, and called the police
The Schoos were arrested while still on the
plane that returned them from Mexico nine
days after they had left their children Following
their INDICTMENT on various state charges of
child endangerment and cruelty, a GRAND JURY
also found evidence that the Schoos had beaten,
kicked, and choked their children in order to
discipline them In April 1993 the Schoos
plea-bargained, agreeing to serve two years of
probation and 30 days of HOUSE ARREST while
the girls remained in foster care In August 1993
the Schoos agreed to give up their parental
rights and placed their daughters up for
permanent adoption
Another nationally publicized case raised
questions regarding the effectiveness of
child-protective services and implicated social
work-ers charged with protecting the victim
Two-year-old Bradley McGee, of Lakeland, Florida,
died in July 1989 from massive head injuries
after his stepfather, 23-year-old Thomas E Coe,
repeatedly plunged him head-first into a toilet
Coe later testified that he had become angry
when the child had soiled his pants McGee’s
21-year-old mother, Sheryl McGee Coe, pleaded
NO CONTEST to second-degree MURDER and
aggravated child abuse for allowing her husband
to abuse McGee and received a 30-year prison
sentence Thomas Coe, convicted of first-degree
murder and aggravated child abuse, received a
sentence of life in prison
The McGee case alarmed the public not
only because of the harsh physical abuse that
caused the toddler’s death but also because of
what many perceived to be a failure in the
system that is designed to protect children like
Bradley McGee Two months before his death,
Bradley had been living with foster parents
owing to allegations of abuse at the hands of the
Coes Despite strong objections by the foster
parents, caseworkers for Florida’s Health and
Rehabilitative Services returned McGee to his
mother and stepfather, determining them to be
fit parents
Public reaction was strong following the
news of Bradley’s death Four social workers
were prosecuted for negligently handling the case, but only the main caseworker, Margaret Barber, was convicted, for disregarding a report from a psychologist who had warned that the Coes were unfit parents The publicity shed light on problems within Florida’s child-protective services agency, including severe understaffing, and led to new laws that empha-size keeping children safe over keeping families together and that also increase funding for more social workers A Florida appellate court later overturned Barber’s FELONY conviction but left standing aMISDEMEANORconviction for failing to report child abuse
In 1997 a controversial court decision led to
a new legal concept: abuse of an unborn child
Traditionally, courts have refused to hold a woman who causes injuries to her own fetus criminally liable for the injuries But in August
1977, the Supreme Court of South Carolina affirmed the criminal conviction of a woman whose crack cocaine usage while pregnant caused the fetus to be born with cocaine in its system, (Whitner v State, 328 S.C 1, 492 S.E.2d
777 [1997]) By regarding the fetus as a person, the 3–2 majority concluded that the mother was guilty of criminal child neglect In January 2003 the state court revisited its holding in Whitner and voted 3-2 to uphold the 12-year sentence of
a woman who had been convicted under the state’s homicide-by-child-abuse law after her cocaine use had resulted in a stillbirth (State v
McKnight, 353 S.C 238, 577 S.E.2d 456 [2003])
In early 2002, a major child-abuse scandal involving priests shook the Catholic Church
Although child-abuse LITIGATION against priests
is hardly new, the public was shocked by the revelation that senior church officials had covered up the facts about widespread abuse
Beginning with allegations against church officials in Massachusetts, the scandal swiftly became national in scope By year’s end, 432 U.S priests had resigned; at least 1,205 more had been accused of child sex abuse; church officials paid hundreds of millions of dollars to settle victims’ lawsuits; and seven grand jury probes continued nationwide
At the epicenter of the scandal was Cardinal Bernard F Law of Boston Following the molestation conviction of former priest John Geoghan in January 2002, it emerged that Law had known of Geoghan’s abuse during the 1980s yet had merely assigned him to a new parish
More abuse ensued and ultimately led the
CHILD ABUSE 359
Trang 3Boston Archdiocese to pay more than $10 million
in settlements to Geoghan’s victims Between
2002 and 2003 more than 500 victims filed sexual abuse complaints against the Archdiocese of Boston, which ultimately paid approximately
$85 million to settle the complaints out of court
Over the next several years, hundreds of alleged child abuse victims came forth to file complaints against the Catholic Church and individual priests in other states The California legislature responded by suspending theSTATUTE
OF LIMITATIONS for one year, allowing childhood sexual-abuse lawsuits to be filed in 2003 regard-less of when the incidents allegedly occurred By year’s end, the Archdiocese of Los Angeles had been hit with more than 500 lawsuits In July
2007 the Archdiocese of Los Angeles agreed to settle those suits by paying the victims more than
$660 million in damages Dioceses in other states began settling child abuse claims that had been filed against them in civil court None of those settlements was for an amount over $100 million
A handful of dioceses filed for BANKRUPTCY
protection in response to the lawsuits
Additionally, some priests resigned, while others were defrocked, prosecuted, and impri-soned While serving out his prison sentence, Geoghan was murdered by another inmate In
2002 the United States Conference of Catholic
Bishops (USCCB) adopted a “zero-tolerance” policy for accused offenders The USCCB also commissioned a comprehensive study that found that 4 percent of all priests who had served in the United States from 1950 to 2002 faced some sort of sexual accusation According
to the report, common incidents of child abuse included priests touching adolescent males under their clothes and asking them to remove their clothing However, more serious acts were committed in many cases
Pope John Paul II responded to the scandal
by issuing a statement, proclaiming that“there is
no place in the priesthood and religious life for those who would harm the young.” The Church then instituted reforms to prevent future abuse
by requiring background checks for Church employees Dioceses faced with child abuse allegations are now required to alert the au-thorities, conduct an investigation, and immedi-ately remove the accused from duty In 2008, the Church asserted that although the scandal was a very serious problem, it estimated that no more than 1 percent (or 5,000) of the over 500,000 Roman Catholic priests worldwide had commit-ted an act of child abuse During a visit to the United States, Pope Benedict admitted that he is
“deeply ashamed” of the clergy sex abuse scandal that has devastated the American church Bene-dict pledged that pedophiles would not be priests
in the Roman Catholic Church
Legislation at the state and federal levels continues to change to meet the goal of protecting children from abuse and neglect while protecting the rights of those facing false accusations
FURTHER READINGS Ahearn, James 2003 “Quantifying Priestly Abuse.” The Record (January 15).
Bayles, Fred 2002 “Seven Grand Juries Examine Bishops.” USA Today (June 20).
Cooperman, Alan 2003 “N.Y Grand Jury Faults Diocese
on Handling of Sexual Abuse ” Washington Post (February 11).
Evans, Angela D., Kang Lee, and Thomas D Lyon 2009.
“Complex Questions Asked by Defense Lawyers but Not Prosecutors Predicts Convictions in Child Abuse Trials ” Law and Human Behavior 33 (June) Ferdinand, Pamela 2002 “Archdiocese Agrees to Report Past Sex Abuse Allegations ” Washington Post (January 25) Giles, Robert H 2009 “Difficult Economic Times Prove Value of Multidisciplinary Approaches to Resolve Child Abuse ” Prosecutor 43 (September).
Lavoie, Denise 2002 “Boston Cardinal Bernard Law, Other Bishops Subpoenaed to Testify by Grand Jury ” AP Worldstream (December 13).
Cardinal Bernard F.
Law came under
bitter public rebuke
for allegedly shielding
abusive priests from
scrutiny, footing their
legal bills, and either
allowing them to
remain on the job or
reassigning them to
new, unsuspecting
churches Law
resigned in December
2002.
AP IMAGES
360 CHILD ABUSE
Trang 4Moore 1995 “Charting a Course between Scylla and
Charybdis: Child Abuse Registries and Procedural
Due Process.” North Carolina Law Review 73.
Simpson, Victor L 2002 “Boston’s Cardinal Law Resigns
After Months of Public Outrage That He Failed to
Protect Children.” AP Worldstream (December 13).
Zoll, Rachel 2002 “Boston Scandal Leads Other U.S.
Catholic Dioceses to Open up About Sex Abuse ” AP
Worldstream (March 6).
CROSS REFERENCES
Child Molestation; Child Pornography; Parent and Child.
CHILD CARE
The supervision and nurturing of a child,
including casual and informal services provided
by a parent and more formal services provided by
an organized child care center
Because there are many different views
about how a child should be reared or nurtured,
the topic of child care often involves contro-versial social and political issues For instance,
it may raise complex questions about a child’s religious upbringing or whether a child should
be disciplined with corporal punishment Some people believe that providing child care outside the home undermines so-called traditional family structures in which the mother is considered the primary caretaker Others are concerned primarily with broadening commu-nity responsibility for children and removing barriers for women who wish to enter and participate fully in the labor force In addition, the term child care encompasses a wide range of services It can include home-based care by a child’s mother or father, care by a grandparent
or other relative, care by a nanny, or care by an organized licensed facility or family center It can also involve early childhood education such
SOURCE: U.S Bureau of Census, Who’s Minding the Kids? Child Care Arrangements: Summer 2006.
Primary Child Care Arrangements Used by Employed Mothers for Children under 5 Years Old in 2006 a
Total number of children: 18,988,000
a Numbers of children in specified arrangements may exceed the total because of multiple arrangements.
b Includes children in federal Head Start program and in kindergarten or grade school.
c May indicate instability in child care arrangements or difficulty in identifying what is regularly used It does not necessarily indicate that
no one looked after the child.
d Being cared for by two or more child care arrangements, excluding school and self-care.
e Only asked for the time the designated parent was working or in school Designated parent refers to the mother in married-couple
families; the designation varies in other familial arrangements.
Designated parent e 3.3%
Other parent e Grandparent
Sibling/other relative
Day care center Nursery/preschool Head Start/school b
In child’s home
In provider’s
home Family day
care
55.4%
Multiple arrangements d
Other
nonrelative
Organized care facility
14.7%
11.0%
21.7%
19.7%
3.2%
3.9%
9.3%
Other 2.7%
10.8%
4.2%
No regular arrangementc
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
CHILD CARE 361
Trang 5as that offered by nursery schools, Montessori schools, and kindergarten programs
According to a 1997 study by the Urban Institute, an estimated 76 percent of preschool children with mothers who are employed are cared for by someone other than their parents
According to these statistics, center-based day-care centers day-cared for 32 percent of children throughout the United States By comparison,
23 percent of the children were cared for by relatives, while 16 percent were cared for by a childcare provider in the provider’s home Six percent of the children were cared for by a nanny or a babysitter in the child’s home
Child care has always existed in the United States Organized childcare centers in the early 1800s took the form of infant day schools in parts of Boston and New York During the industrial revolution, and as a result of increased IMMIGRATION to the United States, day nurseries were created in the late nineteenth century to care primarily for poor urban children In New York City, in approximately
1910, 85 such nurseries cared for more than
5000 children each day Day nurseries were privately run and charitable in nature and were intended to provide custodial supervision, hygiene instruction, and nutrition services
Later, many middle-class parents opted to enroll their children in kindergartens, educa-tional programs adopted in parts of the United States in the mid-nineteenth century
During WORLD WAR II, millions of women entered the workforce in war production areas
The need for an organized childcare program became acute Congress responded by including provisions in the Community Facilities Act of
1941, then more commonly known as theLANHAM
ACT, which created Lanham Act centers for child care (As of the early 2000s, the term Lanham Act
is generally used to refer to the Trademark Act
of 1946, 15 U.S.C.A § 1051 et seq.) The establishment of the Lanham Act centers marked the first time the federal government became directly involved in providing childcare services
to children who were not poor: the centers were open to all children whose parents worked in war production areas The federal government pro-vided 50 percent of the funds needed to operate the Lanham Act centers; states, localities, and parents provided the remaining 50 percent in matching funds In 1943 the cost to parents for child care in a Lanham Act center was uniformly set at 50 cents per day
The federally sponsored Lanham Act centers closed in 1946, soon after World War II ended, although California continued them at a state level After that, direct federal involvement in a national childcare program virtually ceased Although the U.S Congress passed the Com-prehensive Child Development Act of 1972, which would have in part established a national childcare program, President RICHARD M NIXON
vetoed the bill Nixon stated that the act would
“commit the vast moral authority of the national government to the side of communal approaches to child-rearing over and against the family-centered approach.” Nixon’s statement reflected the continuing debate about the appropriateness of providing child care outside
a traditional family structure
Although in the early 2000s the federal government does not have a national child care program, it does provide numerous social programs that include funding for childcare services In 2000 the U.S states spent an estimated $8 billion on child care Of this number, approximately $6 billion came from the federal government in the form of subsidies provided by a number of programs
The Head Start program provides develop-mental education programs primarily to poor children under the age of four.WELFAREprograms such as Aid to Families with Dependent Children (AFDC) provide funds for states to imple-ment childcare services for parents—usually mothers—who receive welfare grants The Fam-ily Support Act of 1988 (FSA), Pub L 100–485,
102 Stat 2343, created the federal Jobs Opportu-nity and Basic Skills (JOBS) program, in which qualifying parents who receive AFDC are required to enter education or training programs
Kindergartens grew in
popularity during the
late nineteenth
century, especially
in New York City
and Boston.
CORBIS.
362 CHILD CARE
Trang 6to enhance their chances of finding employment.
The federal government funds the JOBS program
by providing money to the states The states in
turn are allowed to choose the method of
providing childcare services to welfare recipients
They may provide child care directly, reimburse
parents for childcare expenses, or make direct
payments to childcare providers In 1993 the
federal government spent approximately $480
million on FSA childcare subsidies
The federal government also provides funds
to states through the Social Services Block Grant,
under title XX of the SOCIAL SECURITY Act, 42
U.S.C.A §§ 1397a et seq., as well as funds for the
operation of the At-Risk Child Care Program
The At-Risk Program divides more than $350
million among state governments for childcare
subsidies to families who are at risk of welfare
dependency; the states must match the grants
before they can use the money Finally, the
federal government allows families to deduct
childcare expenses from their taxes in the form
of the federal dependent care tax credit
In response to increasing demands,
Con-gress passed the Family and Medical Leave Act
of 1993 (FMLA), Pub L 103–3, 107 Stat 6
Although the FMLA does not directly provide
for childcare services, it does mandate in part
that employers with more than 50 employees
must allow those employees to take up to 12
weeks of unpaid leave for the birth orADOPTION
of a child or in order to take care of a child with
a serious health condition Many states also
have parental leave legislation, which allows a
parent to take unpaid time off for the birth or
adoption of a child The length of time allowed
for unpaid leave varies from state to state and
may be from six weeks to six months
The regulation of childcare services occurs
primarily on the state level, with the federal
government requiring states to implement
mini-mal regulations for private childcare centers
When Peggy McMartin Buckey and Raymond
Buckey were accused of sexually abusing children
in a day care center in California in the early
1980s, their case (McMartin v Children’s Institute
Intern., 212 Cal App 3d 1393, 261 Cal Rptr 437
[Cal App 1989]) and others like it received
national media attention Out of a stated concern
for the notice given to such allegations, the
federal government passed legislation in 1985
that appropriated funds to the states to provide
training for childcare workers and to support
licensing and enforcement officials The federal government also required states to implement procedures that would require childcare centers
to screen workers for any criminal history In addition, the Child Care and Development Block Grant of 1990 (CCDBG), which provided funds
to state government agencies to subsidize child-care services for low-income working parents, required states to develop minimum health and safety requirements for state-licensed childcare centers Amendments to the CCDBG in 1995 removed such requirements but did obligate states to ensure that parents or guardians may visit or have access to a child while the child is in
a child care center
The regulation of child care facilities and caregivers on the state level varies considerably
A state may require a child care center to obtain
a license in order to operate, or it may mandate certain minimum standards for all child care facilities As of the early 2000s, every state requires that space for a child care facility be
“adequate” or of a certain specified size Most states also regulate how many child care work-ers must be on duty for a specified number of children, depending on the age of the children:
for instance, New York requires one caregiver
on duty for every two children under the age of two Most states also regulate the qualifications and training requirements for child care work-ers and require child care centwork-ers to determine whether a job applicant or worker has a criminal record or has been listed in the state’s
CHILD ABUSE registry Some states, such as Arkansas and South Carolina, in some circum-stances allow corporal punishment of children
in their licensed day care centers
Most states exempt certain child care centers from regulations or licensing require-ments Religious or church-based day care centers, as well as small home-based day care programs, are often exempt from regulations or licensing requirements other than basic health and safety regulations In addition, private day care groups or associations may set goals for quality child care and may provide certification
or accreditation programs for member centers
FURTHER READINGS Berry, Mary Frances 1995 The Politics of Parenthood: Child Care, Women’s Rights, and the Myth of the Good Mother.
New York: Random House.
Capone, Angela, Tom Oren, and John T Neisworth 2003.
Childmate: A Guide to Appraising Quality in Child Care.
Clifton Park, NY: Delmar Learning.
CHILD CARE 363
Trang 7Hayes, Cheryl D., John L Palmer, and Martha J Zaslow, eds 1990 Who Cares for America’s Children: Child Care Policy for the 1990s Washington, D.C.: National Academy Press.
Jackson, Sonia 2004 People under Three: Young Children in Day Care 2d ed New York: Routledge.
Lombardi, Joan 2002 Time to Care: Redesigning Child Care
to Promote Education, Support Families, and Build Communities Chicago: Univ of Chicago Press.
Ring, B., ed 2001 The Child Care Disaster in America:
Disdain or Disgrace? Huntington, NY: Nova.
Steinfels, Margaret O ’Brien 1973 Who’s Minding the Children: The History and Politics of Day Care in America New York: Simon & Schuster.
Youcha, Geraldine 2005 Minding the Children: Child Care
in America from Colonial Times to the Present New York: Da Capo.
CROSS REFERENCES Family Law; Parent and Child; Welfare.
CHILD CUSTODY Child custody refers to the care, control, and maintenance of a child, which a court may award
to one of the parents following a divorce or separation proceeding
Under most circumstances, state laws pro-vide that biological parents make all decisions that are involved in rearing their child, such as residence, education, health care, and religious upbringing Parents are not required to secure theLEGAL RIGHTto make these decisions if they are married and are listed on the child’s birth certificate However, if there is disagreement about which parent has the right to make these decisions or if government officials believe that
a parent is unfit to make the decisions well, then family courts or juvenile courts will determine custody
District and state courts base their decisions
on state laws, which vary greatly among states If
a case challenges the constitutionality of a state law or—in rare instances—a state’s jurisdiction (i.e., its right to decide the case), then the U.S
Supreme Court may issue an opinion
Divorced Parents
When custody must be spelled out it conse-quentially enables some parents to wage bitter custody battles that can last for years
In a typical DIVORCE involving at least one child, permanent physical custody is awarded to the parent with whom the child will live most of the time Usually, the custodial parent shares joint legal custody with the noncustodial parent, meaning that the custodial parent must inform
and consult with the noncustodial parent about the child’s education, health care, and other concerns In such situations, courts may order visitation, sometimes called temporary custody, between the child and the noncustodial parent
A clear schedule with dates and times may be written into the order, or a court may simply state that visitation should be reasonable.CHILD SUPPORT is a common requirement and is paid
by the noncustodial parent to the custodial parent as assistance in paying for the cost involved in raising the child
The typical arrangement is subject to some exceptions Some courts allow parents to retain joint physical custody, in which the child spends equal time with both parents In California, the Family Code, for example, establishes a presumption that joint custody is in the child’s best interest, thus placing joint custody as a preferred option when courts make custody determinations in that state (Cal Fam Code Ann § 3040) Advocates of joint custody argue that it lessens the feelings of losing a parent that children may experience after a divorce and that
it is fair to both parents Many courts, by contrast, resist ordering joint custody if either parent does not want it, due to the high degree
of cooperation it requires, especially when the children involved are young or if the parents live a great distance apart, such as in separate states
Split custody is an arrangement in which the parents divide custody of their children, with each parent being awarded physical custody of one or more offspring In general, courts try not
to separate siblings when awarding custody
Unmarried Parents
Where a child’s parents were never married, most states provide that the child’s biological mother has sole physical custody unless the biological father takes steps to be considered for custody Those steps include obtaining a court’s finding of PATERNITY and filing a petition for custody In some states, this is a bifurcated (two-step) process; in others, the two steps are combined An unwed father usually cannot win custody from a mother who is a good parent, but he may have priority over other relatives, foster parents, or strangers who want to adopt his child
The government must provide a child’s unwed parents with the opportunity to step
364 CHILD CUSTODY
Trang 8forward if it is seeking custody In Stanley v.
Illinois (405 U.S 645, 92 S Ct 1208, 31 L Ed
2d 551 [1972]), the U.S Supreme Court held
that under the EQUAL PROTECTION clause of the
FOURTEENTH AMENDMENT, an unwed father is
entitled to a hearing to determine his fitness
as a parent before the state can obtain custody
of his children following their mother’s death
Criteria for Custody Awards
Much debate about child custody has focused
on the criteria that the courts use in awarding
permanent physical custody in cases where two
biological parents disagree Noncustodial
par-ents of both genders have long charged that
judges’ decision making is arbitrary and that it
does not focus on the child In response to this
criticism, many states have adopted a standard
that places primary emphasis on the best
interests of the child The challenge for courts
since the 1990s has been to interpret the
standard objectively in the absence of
meaning-ful guidelines
Policies of the past offer little guidance
Before the late 1800s, fathers had sole rights to
custody, because it was closely tied to
inheri-tance and PROPERTY LAW Mothers had no such
rights Beginning in the nineteenth century,
courts began to award custody of young boys
and of girls of all ages solely to mothers on the
presumption that mothers are inherently better
caretakers of young children
Until 1970, most states encouraged or
allowed this maternal preference, also called
theTENDER YEARS DOCTRINE, and mothers almost
always received custody Eventually, many state
courts found this preference to be
unconstitu-tional, and gender-neutral custody statutes had
replaced maternal-preference standards in 45
states by 1990 A catalyst for this change was
Reed v Reed (404 U.S 71, 92 S Ct 251, 30 L
Ed 2d 225[1971]), a noncustody case in which
the U.S Supreme Court ruled that the equal
protection clause of the Fourteenth
Amend-ment prevents courts from basing opinions on
generalizations about either gender
A 1994 AMERICAN BAR ASSOCIATION study of
divorces in Utah showed that after maternal
preference in divorce cases was declared
uncon-stitutional in that state in 1986, the number of
mothers who received sole custody decreased,
the number of joint legal custody awards
increased, and the number of specific-visitation
schedules increased The researchers concluded that, although the proportion of fathers who received sole custody did not necessarily go up, the net result was more involvement by fathers after divorce
No straightforward criterion has replaced the simple—althoughunconstitutional—presumption that children belong with one gender or the other The decisions that result are often incon-sistent, and many participants view them as arbitrary Ultimately, the judge decides the child’s future, and few guidelines are provided to ensure that the decision is objective
Nevertheless, courts have instituted some mechanisms to determine a child’s best inter-ests Guardians ad litem (caretakers for the lawsuit) or friends are sometimes appointed to represent the child’s interests and to advocate
in court on the child’s behalf Custody evalua-tions may be ordered, in which court-services personnel visit each parent’s home and evaluate each parent’s plan for caring for the child The fact that one parent has been the child’s primary caretaker is often considered but is not enough
to guarantee a custody award
In 2008, the Minnesota legislature tasked the stateCOURT ADMINISTRATORwith convening a study of joint physical custody presumptions in state law Appendix A of the 286-page report published in January 2009 by the Minnesota Joint Physical Child Custody Study Group indicated that no state had a presumption of equal physical custody, but that eight states had presumptions in favor of joint physical custody
Nine states adopted presumptions of joint physical custody applicable only where parents had agreed to it Overall, 26 states had best interest standards for determining custody (five states had neither presumptive nor best interest standards in place) Additionally, 22 states had presumptions against joint custody where there was a history of DOMESTIC VIOLENCE, abuse, or convictions of certain crimes Another 18 states required courts, at a minimum, to include evidence of such factors in their best interest analyses
Changing Custody Awards
Standards for changing custody awards are similarly vague, although most states’
criteria allow courts to modify custody only when the circumstances of the custodial parent
or of the children—not of the noncustodial
CHILD CUSTODY 365
Trang 9parent—have changed A 1993 Stanford Uni-versity study of petitions to modify custody found that these awards were highly inconsis-tent, and it attributed them in many cases to personal gender biases held by judges
Sexual Orientation and Race
Social issues are sometimes slow to affect custody decisions Homosexual parents still pose dilemmas for judges Although in many cases homosexual parents have won or retained custody, the Virginia Supreme Court in 1995 reinstated a trial court order awarding custody
of a boy to his grandmother because the lesbian mother’s sexual orientation was deemed poten-tially harmful to the boy (Bottoms v Bottoms,
249 Va 410, 457 S.E 2d 102) Similarly, the Alabama Supreme Court in Ex parte H.H (830
So 2d 21[Ala 2002]) refused to return custody
of children to their mother, despite her assertions that the father, the custodial parent, had abused the children Although the majority
in the decision did not address the fact that the mother was a lesbian, a concurrence written by the chief judge of the court suggested that the court should consider homosexuals as presumptively unfit to have custody of minor children In contrast to these types of decisions, many courts have been more willing to grant custody to gay and lesbian parents when the parents are a same-sex couple
In the Florida case of In re Kantaras v
Kantaras (No 98-5375NA [Sixth Judicial
CIRCUIT COURT, Pasco County, Florida, 2003]), considered the first fully litigated case of its kind in the United States, a circuit court judge ruled that a female-to-male transsexual was legally a male, making hisMARRIAGEto his female wife legal The significance of this holding was that under Florida law, he could now be granted parental rights and custody of the couple’s two children in a divorce proceeding, even though
he was not the biological father (His wife was the biological mother of their children.) Although the U.S Supreme Court ruled in
1984 that removing custody from a white child’s mother because of her marriage to a black man would be discriminatory (Palmore v Sidoti, 466 U.S 429, 104 S Ct 1879, 80 L Ed 2d 421), a Tennessee court in 1986 removed custody from
a white mother who was living with a black man In that case, when one of the children’s guardians died two years later, the mother, who
had by then married the man, was awarded custody of one of her children (Smith v Smith,
1989 WL 73229[Tenn App])
Adoption ADOPTION can provide courts with another source of custody disputes Most state laws require that both birth parents give consent before their child can be adopted Such a law was at issue in a custody battle over Jessica DeBoer, who was born in Iowa in 1991 and adopted by a Michigan couple DeBoer’s birth mother later married DeBoer’s birth father, and they sought and won custody of DeBoer in Iowa, based on the fact that the father had not consented to the adoption The adoptive parents then won in the Michigan courts, based
on an analysis of the child’s best interests On appeal, the Michigan Supreme Court reversed, declaring that under federal law, Iowa had jurisdiction in this case and that unless a child’s birth parents are unfit, an unrelated person may not retain custody The U.S Supreme Court agreed, in DeBoer by Darrow v DeBoer (509 U.S
1301, 114 S Ct 1, 125 L Ed 2d 755 [1993]), and Jessica was returned to her birth parents Family ties are often a compelling factor for judges even when birth relatives other than parents are involved For example, the Minne-sota Supreme Court ruled in 1992 in Matter of Welfare of D L (486 N.W.2d 375 [Minn.]), that the biological grandparents of Baby D., a three-year-old African American, should be granted custody, rather than the white foster parents who had raised her from birth The case convinced the Minnesota Legislature to change
a law (M S A § 259 28, subd 2) providing for same-race preference in adoptions, but race was not the deciding factor in the case: The court based its decision on reuniting Baby D with her birth relatives and her siblings, of whom the grandparents also had custody
Critics of removing children from parents and from parental figures to whom they have become attached argue that the rupture is too difficult to overcome and that children suffer from imperfect child-custody laws The
Nation-al Conference of Commissioners on Uniform State Laws approved in 1994 a model adoption statute, which was designed to reduce the chances that custody will be changed after children have become attached to parent figures The model statute provides guidelines for birth parents and adoptive parents to follow
366 CHILD CUSTODY
Trang 10before an adoption in order to prevent custody
battles afterward
Courts have tended toward placing more
importance on child-caretaker attachment and in
some cases even denied custody to birth parents
in order to uphold this attachment A Florida
judge ruled in 1993 that 14-year-old Kimberly
Mays could choose not to see her birth parents,
from whom she had been separated at birth by a
hospital error (Twigg v Mays, 1993 WL 330624
[Fla Cir Ct.]) The decision was based on the
length of time she had spent with her
nonbio-logical family and her attachment to it
In 1978 the U.S Supreme Court ruled that
the adoption of a child by the child’s stepfather
did not violate the due process rights of the
child’s unwed biological father In Quilloin v
Walcott (434 U.S 246, 98 S Ct 549, 54 L Ed
2d 511 [1978]), the Court decided that the
adoption was in the best interests of the child
and wrote that because the particular biological
father had participated very little in rearing the
child, he did not have the same rights under the
equal protection clause that a more involved
father would have
Terminating Parental Rights
Owing in part to a national surge in reports of
CHILD ABUSEand neglect in the 1980s and 1990s,
courts faced questions of whether abusive or
dangerously neglectful parents should retain
custody of their own children It is the
government’s role to step in when a child is
not being safely cared for, and if parents are
judged unfit, the local social services
depart-ment may seek to terminate their parental rights
and to free the child for adoption or alternative
care A child may be placed in foster care while
a custody case is pending
Before removing a child from her or his
parents, the state must produce “clear and
convincing” evidence that terminating parental
rights is the best option for the child This
matter was clarified in Santosky v Kramer (455
U.S 745, 102 S Ct 1388, 71 L Ed 2d 599
[1982]) The case arose after a New York County
social services department successfully brought
neglect proceedings in state court against the
Santoskys, a couple with three children The U.S
Supreme Court found that the state’s standard—
“a fair preponderance of evidence”—was too low
for deciding something as important as a family’s
future
In 2007 the Tennessee Supreme Court returned custody of a young girl to her biological parents, Chinese nationals who planned to take her back to China This was despite the fact that she was only weeks old when an American couple was granted open-ended temporary custody of her, with hopes of eventual adoption
The primary reasoning behind the court’s decision was its conclusion that the biological parents, because of language barriers, did not understand the consequences of their earlier waiver of custody and parental rights to the American couple in 1999 (In Re Adoption of A
M.H No W2004-01225-SC-R11-PT, [2007])
Courts and Jurisdiction
Most custody decisions are made by family courts However, where a juvenile court has found that a minor poses a threat to society if current custody arrangements continue, the juvenile court may turn over physical custody
to the state The court may simultaneously issue
a so-called CHIPS petition, declaring the“child
in need of protective services,” if the current custodian is abusive or negligent
Jurisdiction is an issue that has also received much attention A court has the power to settle
a custody dispute if a child lives for at least six months in the location where the court has jurisdiction or if it is demonstrated that the court has the closest connection with the child
All states have adopted the Uniform Child Custody Jurisdiction Act, originally adopted
in 1967, which provides that a state’s court will not accept a custody case unless that state has
ORIGINAL JURISDICTION or the state with original jurisdiction relinquishes it This law was updated in 1997 with the passage of the Uniform Child Custody Jurisdiction and En-forcement Act, which added a number of provisions for the enforcement of child-custody orders from other states As of 2003, more than
30 states, including the District of Columbia, had adopted the new law, and several others were considering its adoption The Hague Convention Treaty provides similar reciprocity between nations that are parties to it (imple-mented at 42 U.S.C.A §§ 11601–11610 [Supp
1993])
A parent’s interstate move sometimes blurs jurisdictional lines For this reason, courts may restrict the geographic area in which a parent may live as part of the custody order, or they
CHILD CUSTODY 367